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Pacific Gas & Elec. Co. v. United States

ELR Citation: 38 ELR 20203
Nos. No. 2007-5046, (Fed. Cir., 08/07/2008)

The Federal Circuit affirmed in part, reversed in part, and remanded in part a lower court's assessment of damages in a contract dispute arising from the government's failure to accept and dispose of radioactive waste from nuclear utilities. The nuclear utilities originally brought this action seeking damages to compensate for the cost of storing spent nuclear fuel (SNF) and high-level radioactive waste (HLW) beyond the time that the government promised to begin storing that waste in a permanent and secure repository. In setting the rate at which the U.S. Department of Energy (DOE) was obligated to accept SNF/HLW from the utilities under the standard contract, the lower court improperly relied on a unilateral DOE estimate made far after contract formation and tainted by a statutory framework in place at that time, which, if left unchanged, would have rendered timely performance impossible. Rather, damages for partial breach of the standard contract should be calculated with reference to the removal rates determined in the Annual Capacity Report for 1987.

[A related decision can be found at 38 ELR 20202.]